Collins v. City of Norfolk, VA Petition for a Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    4 IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 
Nos. 74-1815, 74-1816

JIMMIE L. RODGERS and JOHN A. TURNER,
Appellants, 

v .
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Appellees.

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

HONORABLE HUBERT I. TEITELBAUM,
United States District Judge,

Respondent,
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA., AFL-CIO,

Real Parties in Interest.

APPELLANTS' REPLY BRIEF

WILLIAM T. COLEMAN, JR.
Dilworth, Paxson, Kalish,
Levy A Coleman 2600 The Fidelity Building 

.12 3 South Broad Street Philadelphia, Pennsylvania 19109
BERNARD D. MARCUS 

Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pennsylvania 15222

JACK GREENBERG 
JAMES Mo NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCHNAPPER1C Columbus Circle 
New York, New York

Attorneys for Appellants

10019

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* I N D E X

Page
I. The Orders Restraining Communications Between 

Civil Rights Lawyers And Black Steelworkers 
Impermissibly Infringe Upon First Amendment 
Freedoms..........................................  2

II. The Infringements On First Amendment Freedoms
By The Orders Restraining Communications Between
Civil Rights Lawyers And Black Steelworkers Is
Not Excused By The Class Action Context...........  6

III. The Stay Of All Proceedings Violates Statutory 
Rights To Have This Employment Discrimination 
Class Action Expedited............................  9

Table of Cases
Bridgeport Guardians Inc. v. Bridgeport Civil Service

Comm., 482 F.2d 1333 (2nd Cir. 1973) ..............  13
Ford v. United States Steel Corp., No. 73-3907 .........  12
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..........  15
McKinstry v. United States Steel Corp., Ford v. United 

States Steel Corp., Hardy v. United States Steel 
Corp., 6 EPD 51 8790 (N.D. Ala. 1973) ..............  12

NAACP v. Button, 371 U.S. 415 (1963)   2,7,8
Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) 2
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

(5th Cir. 1974)   14,15
Rosen v. Public Service Electric and Gas Co., 477 F.2d

90 (3rd Cir. 1973) •................................  12
Sheppard v. Maxwell, 384 U.S. 333 (1966) ....... ........ 4
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205

(1972)     2

United States v. Wood, Wire & Metal Lathers Int'l Union,
471 F.2d 408, cert, denied, 37 L.Ed.2d 398 (1973) .. 13

i
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* Statutes and Rules
Page

42 U.S.C. § 2000e-5 (f) (4) and (5) ............. ......... 11
42 U.S.C. § 2000e-5 (f) (5) ..............................  2
Rule 23, Fed. R. Civ. P..............................  7,8,10
Rule 23(b)(2), Fed. R. Civ. P...........................  7
Local Rule 34(d) .....................................  4,6,8

Other Authorities
ABA Code of Professional Responsibility, DR 7-104 ......  5
3B, Moore's Federal Practice 5[ 23.01 [10 .-2 ] ; f 23.40

(2nd ed. 1974) ....................................  7

ii
i



4 IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 
Nos. 74-1815, 74-1816

JIMMIE L. RODGERS and JOHN A. TURNER,
Appellants,

v.
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Appellees.

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

v.
HONORABLE HUBERT I. TEITELBAUM, 
United Spates District Judge,

Respondent,
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Real Parties in Interest.

APPELLANTS' REPLY BRIEF

The First Amendment rights we assert in this appeal 
are significant values in their own right; they are also 
necessary tools accorded civil rights litigants to

- 1 -

;



achieve equal justice under law. NAACP v. Button, 371
U.S. 415 (1963) and numerous other Supreme Court de­
cisions have recognized that the First Amendment 
rights associated with "meaningful access to the courts" 
by civil rights lawyers and litigants properly facilitate 
resolution of justicable controversies. Similarly, it is 
recognized that civil rights litigants are "private 
attorneys general" pursuing a national policy of the 
highest priority, Newman v. Piqgie Park Enterprises, 390 
U.S. 400, 402 (1968); Trafficante v. Metropolitan Life
Ins. Co., 409 U.S. 205, 211 (1972), and thus entitled to 
expeditious adjudication of employment discrimination 
actions, 42 U.S.C. § 2000e-5(f)(5).

I.
The Orders Restraining Communications 
Between Civil Rights Lawyers and Black 
Steelworkers Impermissibley Infringe 
Upon First Amendment Freedoms.

Mr. Justice Brennan's opinion for the Supreme Court 
in NAACP v. Button, 371 U.S. 415 (1963) clearly establishes 
that appellants' First Amendment rights have been violated. 
The arguments of the company and union to the contrary are 
not persuasive.

First, the district court in its September 12, 1974 
memorandum opinion makes clear that the orders restraining 
First Amendment rights are directed to protecting the 
Alabama consent decree:

- 2 -

i



The gist of the issue before the Court 
in the case concerns the efforts of coun­
sel for named plaintiffs to contact other 
prospective members of the proposed class 
in order to discuss the terms and scope 
of a consent decree settlement which re­
solved the issue of employment dis­
crimination in the steel industry and 
which was entered into by representatives 
of the United States Government, the 
United Steelworkers of America and the 
major steel producers in this country. 
Defendants contend that the effect of
r> 1 ^ I- ■! -P-Pc 1 q  n n n  cal_ 1 c V/l 1 1  0 t O

sabotage this settlement, entered into 
before the Honorable Sam C. Pointer, Jr., 
United States District Judge for the 
Northern District of Alabama earlier this 
year. Plaintiffs contend that their aim 
is educative only and argue that no coun­
tervailing consideration is sufficient to 
outweigh their right to contact prospec­
tive class members.

* •However, the Alabama district has clearly stated that 
such restraint is not necessary to protect the inte­
grity of its proceedings. See, Appellant's Brief, at

- 3 -

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pp. 72-75.
Second, Sheppard v. Maxwell, 384 U.S. 333 (1966)

does not apply. The Supreme Court in Sheppard had a 
narrow issue before it, speech that intolerably dis­
torted the fact-finding process. No such adverse 
impact on the integrity of the judicial process is 
before this Court. If the worst the company and union 
fear did in fact occur,- i. e. , more black steelworkers 
decide to join the class action after "solicitation" by 
plaintiffs' attorneys, the effect on the class action 
would be salutary not detrimental. Greater represen­
tation of the plaintiff class could only increase 
chances that the truth concerning employment discrimina-
J- ^  1- T T r ~« «  ~  U  ̂  ̂  J  * - - 1 1  —  — i-
c. J L O X l  C *  L - l l O x i l V j :  O  C C ' U U  V V X X X  *v—  t / i l l C  U U  L  «

Third, the company and union argue that plaintiffs 
waived their First Amendment right to attack Local 
Rule 34(d) by invoking it against the company and union 
in the motion filed April 17, 1974. In fact, plaintiffs 
withdrew that motion and at least temporarily settled the 
matter by agreement with the company and union about pro­
cedures for the company and union to communicate with the 
class. See, Appellants' Brief at 16-17. Thus, the com­
pany and union can communicate with plaintiffs' class«
while plaintiffs and their attorneys cannot communicate 
with their own class without prior approval of the dis­
trict court. It should be clear that on the issue of

- 4 -

4



communication with plaintiffs, counsel for plaintiffs 
and the defendants are not on the same footing. As 
DR 7-104 of the American Bar Association's Code of 
Professional Responsibility states:

(A) During the course of his representation 
of a client a lawyer shall not:
(1) Communicate or cause another to 

communicate on the subject of the 
representation with a party he knows 
to,be represented by a lawyer in 
that matter unless he has the prior 
consent of the lawyer representing 
such other party or is authorized 
by law to do so.

(2) Give advice to a person who is not 
represented by a lawyer, other 
than the advice to secure counsel, 
if the interests of such person are 
or have a reasonable possibility of 
being in conflict with the interests 
of his client.

Fourth, the company makes the novel point that First 
Amendment freedoms are not properly in issue at this time 
because no backpay under the consent decrees is being 
offered at the moment. The assumption £hat only the con­
sent decrees could be discussed by plaintiffs' attorneys 
and black steelworkers is false. The district court has 
forbidden plaintiffs' attorneys from attending Homestead 
NAACP Chapter meetings no matter what the topic of dis­
cussion. Furthermore, it is not up to the company, union, 
or the district court to determine for black steelworkers 
when they can speak about something, just as it is not up 
to them to determine who they can speak to. It is un­
realistic that communication concerning the consent decrees

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i



can be accomplished adequately in the 30 days during 
which the offer of backpay is. open. Since all discovery 
has been stayed, black Homestead steelworkers presently 
cannot be told how much they stand individually to gain 
or lose on the dollar.

Fifth, there is no question that the unconstitu­
tionality of the local rule on its face was raised below; 
by the district court itself, App. 183a, and by plain­
tiffs in a brief ordered by the district court, App. 201a- 
202a ("the communications requested cannot be prohibited 
in light of the cases cited above regardless of how one 
might interpret the application of Local Rule 34(d) or 
Order of Court dated September 29, 1973," 202a).

Clx th n "* On  ̂c* t h?V0
standing to assert violation of the First Amendment free- 
dooms of the Homestead NAACP. However, we assert the 
violation of First Amendment freedoms of Homestead NAACP 
members only insofar -as they are members of the class 
plaintiffs seek to represent. The only basis for banning 
plaintiffs' counsel from meeting with the NAACP is the 
fact that the NAACP includes members of plaintiffs' class.

II.
The Infringment On First Amendment Freedoms 
By The Orders Restraining Communications 
Between Civil Rights Lawyers And Black 
Steelworkers Is Not Excused By The Class 
Action Context.

The district court's orders restraining communications
- 6 -



are excused by the union by reference to the class action 
context. Union's Answer at 24-39. However, government
"cannot foreclose the exercise of constitutional rights 
by mere labels." NAACP v. Button, supra, 371 U.S. 429. 
Neither Rule 23, Fed. R. Civ. P., nor Local Rule 34(d) re­
peals the First Amendment. Just as "solicitation" has no 
talismanic quality, NAACP v. Button, supra, 371 U.S. at 
429, with respect to First Amendment infringement, neither 
does "class action." Rule 23(b)(2) was specifically 
drafted with civil rights litigation in mind and civil 
rights actions are commonly brought in class action form. 
See, 3b , Moore's Federal Practice 51 23.01 [10.-2]; 51 23.40 
(2nd ed. 1974). The First Amendment right of collective 
actxvicy for civil rights iiliyatxOii established by NAACP 
v. Button obviously was intended to apply to civil rights 
class actions.

Nevertheless, the union argues that because of the 
class action context, "the constitutional issues of free­
dom of speech upon which plaintiffs rely come into play —  
if at all —  only if the district court had banned all pre­
certificate communications." Union's Answer at 28. Pro­
hibitive regulation can be as harmful as absolute prohi­
bition. Moreover, the district court has in fact 
absolutely prohibited attendance of plaintiffs' attorneys 
at any Homestead NAACP meetings. The union points to the 
"high inherent risk" that plaintiffs' counsel will "mis-

- 7 -

i



4

represent" the status of the action. Union's Answer at 
34. Yet, there is no evidence of any risk other than 
the bare assertion that plaintiffs' counsel have "an axe 
to grind." What the union fears is that more black 
steelworkers will decide to join the class action.
Union's Answer at 37. Barring black steelworkers from 
freely speaking to plaintiffs' attorneys is undoubtedly 
one kind of regulation/ but not the least restrictive 
alternative required by the First Amendment, NAACP v. 
Button, supra, 371 U.S. at 438. If any improper "mis­
representation" or "solicitation" occurs, the attorney 
can be disciplined upon a finding of actual impropriety; 
depriving black steelworkers of their First Amendment 
treedoms as a broad prophylactic meat/ure is clearly 
unnecessary.

The union repeatedly characterized the orders re­
straining communication as "precertificate regulation." 
This assumes the district court will impose a less strin­
gent rule if plaintiffs are certified as class represen­
tatives under Rule 23, Fed. R. Civ. P. This assumption 
has no basis in that record. On the contrary, Local 
Rule 34(d) applies to "potential or actual class members" 
and makes no distinction between communication before and 
after certification.

- 8 -

i



* III.
The Stay Of All Proceedings Violates 
Statutory Rights To Have This Employment 
Discrimination Class Action Expedited.

The present procedural posture is that plaintiffs have 
pending motions to compel answers to interrogatories, which the 
district court has declined to rule on. Plaintiffs also have 
pending motions to certify the class, which the district court 
has declined to rule on. A stay of all proceedings has been in 
effect since June 27, 1974.

In the interim between submission of appellants1 brief and 
appellees' briefs, the district court on September 12 issued a 
memorandum opinion stating the reasons for the prior orders 
staying all proceedings. In pertinent part, the district court 
stated th-'t *

Throughout this litigation my attitude 
has been to broach no interference with the 
ongoing process which is taking place in 
Alabama. As long as it appears that the 
Alabama settlement has the potential to elim­
inate all disputes between all the parties, 
and thus the potential to eliminate the need 
for litigation in this forum, I see no good 
reason to interfere with that process. Plain­
tiffs' best argument in support of their motions 
(each of which, it might be noted, has been 
directed in one way or another toward their 
ultimate goal of getting this court to permit 
them to proselytize before minority steelworkers) 
is that no harm could come of it. Defendants 
vigorously argue that a great deal of harm--in 
the form of delay, confusion, and increased 
litigation--could come as a result of plaintiffs' 
interference. I agree with defendants' position. 
The administration of the Alabama settlement, 
which is mammoth in its scope and exhaustively 
detailed in its specifics, is simply not amenable 
to the type of participatory democracy which

- 9 -
i



plaintiffs envision. See in this regard 
Aikens vs. Abel, 373 F. Supp. 425 (W.D.
Pa. 1974) .

Thus, for the reasons set out above, 
on June 27, 1974, I ruled that this case 
would be continued until January 15, 1975, 
with discovery to be held in abeyance, in 
order to permit the Alabama settlement pro­
cess to reach its ultimate conclusion. In 
so ruling, I thereby denied plaintiffs1 
renewed motion for class determination and 
renewed motion to compel discovery, which 
had been filed previously.

The court, therefore, has before it a stay of all proceedings, 
including discovery and a pending class action determination, in 
a three-year-old employment discrimination action for at least 
six months for the sole reason that consent decrees were entered 
in Alabama. Appellants submit that this course of action vio­
lates due process, the statutory purpose and specific command 
of Title VII and Rule 23, Fed. R. Civ. P. Appellants' Brief 
at 69-85.

First, what is at issue is the right of plaintiffs to have 
their Title VII case processed in the manner required by Congress. 
It is Congress that has specifically required that Title VII 
litigation be expedited. The union, in its Answer at 13, is 
in error when it asserts that the district court had exercised 
a discretionary power not to "speed up" the case at this junc­
ture. Congress has limited the discretion of the district court 
in the handling of Title.VII cases consistent with the purpose 
of completely eliminating employment discrimination. Nor is it 
some extraordinary "speeding up" that plaintiffs desire; we 
merely insist that the case not be unnecessarily slowed down or 
halted.

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Second, the company characterizes the stay of all proceedings
as within the inherent power of the district court to control its 
docket. Company's Brief at 44-45. The district court, however, 
in its September 12 opinion unequivocally states that the sole 
reason for the stay was the Alabama settlement, not any considera­
tions of docket control.

Third, the district court's "crowded docket," and "heavy 
caseload," are cited as a proper predicate to stay all proceedings. 
Union's Answer at 14; Company's Brief at 46. The simple answer 
is that the district court in its September 12 opinion clearly 
states that its sole reason for staying all proceedings was the 
Alabama settlement. Even if we assume the exercise of such 
discretion by the district court, 42 U.S.C. §§ 2000e-5(f)(4) and 
(S) ^sc2Tib0 02T ^ E L t m9?.ns "to deal v.rltrli H'.e d i ? b. ?_ c "t* ^nnrt-1 g

. incapacity to process a Title VII case.
Fourth, although the district court's September 12 opinion 

rejected prior delay below by the plaintiffs as -a reason for the 
stay of all proceedings, the company and union continue to devote 
much space to this argument. See, Company's Brief at 38-44;
Union's Answer at 16-17. It is incomprehensible why, assuming 
there was prior delay, a stay of all proceedings is thereby 
justifiable. Delay of the proceedings is harmful because 
deprivation of the statutory rights of black steelworkers at 
Homestead continues unnecessarily; a stay of all proceedings 
merely adds more unnecessary deprivation. Expedition not delay 
is required. Appellants' Brief at 83-84 provides an adequate

-  11 -  

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point-by-point refutation of the specific claims of delay made 
by the company and union.

Fifth, the union argues that the stay of all proceedings 
is proper because the consent decrees provide for all the injunc­
tive relief plaintiffs seek. Union's Brief at pp. 20-27. The 
question of the comprehensiveness of the injunctive relief 
afforded by the consent decrees is not before this Court. How­
ever, the union's argument that purports to place the issues on 
appeal within the context of the relief provided by the consent 
decrees is also demonstrably false. The relief provided in the 
consent decrees, contrary to the union's statement, is in many 
respects less than what courts have ordered to remedy discrimina­
tion, and accordingly is less than what the plaintiffs are 
entitled to in Rnrlgprg . See. Rnspn \7 . Pnhl ir Service Rl ertri n
and Gas Company, 477 F.2d 90, 96 (3rd Cir. 1973).

The union represented that the relief provided in the 
Fairfield Decree was less than that provided in -the consent 
decree. The union stated that the Fairfield decree only provided 
back pay for sixty-one employees. However, the union did not 
mention that the denial of back pay to the other black workers 
is on appeal to the Fifth Circuit, Ford v. United States Steel 
Corporation, No. 73-3907, nor that the 61 workers received over

± y$200,000 in back pay or almost $3,300 per man. In comparison

1 / The 61 black employees, contrary to the Union's misrepresenta­
tion,-Brief at 24 n. 33, were awarded back pay in three actions in 
which they were represented by private counsel, including attorneys 
for the Legal Defense Fund, and not by the United States in a 
"pattern and practice" suit. McKinstry v. United States Steel 
Corporation, Ford v. United States Steel Corporation, Hardy v . 
United States Steel Corporation, 6 EPD 5[ 8790 (N.D. Ala. 1973).

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12



the consent decrees provide for $30.9 million for over 60,000 
blacks, female and Spanish-surnamed Americans or approximately 
$500 per person. The union also argued that the rate retention 
remedy in the consent decree was superior to the Fairfield 
decree, but ignored the fact that rate retention in the Fairfield 
decree was limited to black employees, rather than afforded to 
all employees. Consequently, the rate retention provision in 
the Fairfield decree is specifically geared to overcome the 
discriminatory position of blacks as quickly as possible, while 
the consent decrees in affording rate retention to both blacks 
and whites reduces the effectiveness of the remedy. Most 
importantly, the union ignored the many relief provisions con­
tained in the Fairfield decree which are either not in the consent 
decrees or are in the consent decrees in a diluted form: (1) the
goals and timetables established for promoting -blacks to higher 
paying jobs, e.g., craft and supervisory, and designed to end

2/discrimination and its effects faster in the Fairfield decree;
(2) the re-definition of "vacancy"; (3) the provision for

2/ Courts have recognized the need to provide ratio and goal 
requirements more stringent than these provided in the consent 
decrees. “See United States v. Wood, Wire & Metal Lathers Int'l 
Union, 471 F.2d 408, 412-13, cert, denied, 37 L.Ed.2d 398 (1973) 
(the Court upheld an order requiring immediate issuance of 100 
work-permits to minority group persons, and a one-for-one quota 
on issuance of subsequent permits until 1972); Bridgeport Guardians 
Inc, v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2nd 
Cir. 1973) (the court affirmed a hiring quota of 50% for first 10 
vacancies, 75% for the next 20, and 50% of subsequent vacancies.

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for job-skipping; (4) merger of lines-of-progression (LOP) to 
allow black employees greater opportunity to move to their

3/
"rightful place"; (5) the requirement that the company establish 
a pre-apprentice training program for blacks in order to insure 
that the goals and timetables are met; (6) extensive reporting 
for review and implementation of the decree; and (7) the estab­
lishment of a committee composed of representatives of the 
union, company, and the affected class (the consent decrees 
provide an implementation committee appointed entirely by the 
union and the company).
s Moreover, a variety of limitations in the decrees on the 
basic remedy of plant seniority may render the affirmative relief 
in the decrees ineffective. The decrees provide for three-step 
bidding: (1) when a vacancy occurs in a white LOP it will first
be offered to the employee in the job immediately below the 
position in which the vacancy exists; (2) only when all the LOP 
employees have had an opportunity to advance will the employees 
within the department have an opportunity to bid on the vacancy 
in the LOP; (3) and, finally, after all the departmental employees 
have had an opportunity to advance into the LOP, then the 
departmemtal vacancy wil*l be posted for plant-wide bidding.

3/ "Job-skipping" and merging of lines of progression where 
feasible are common remedies for discrimination. Pettway v. 
American Cast Iron Pipe Company, 494 F.2d 211, 248-49 (5th Cir. 
1974), and cases cited therein.

14



These limitations are contrary to Title VII law which requires 
the institution of a seniority system designed to terminate the 
effects of discrimination as quickly as possible. Pettway v. 
American Cast Iron Pipe Company, 494 F.2d 211, 248-49 (5th Cir. 
1974), and cases cited therein. Finally, the consent decrees do 
not change or abolish any existing discriminatory tests, the use 
of which is an issue in this action. App. lOa-lla; see, Griggs 
v. Duke Power Company, 401 U.S. 424 (1971).

Respectfully submitted,

I ■

WILLIAM T. COLEMAN, JR.
Dilworth, Paxson, Kalish,
Levy A Coleman
2600 The Fidelity Building
123 South Broad Street
Philadelphia, Pennsylvania 19109

BERNARD D. MARCUS - 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pennsylvania 15222

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCIINAPPER

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants

i
15



UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
Nos. 74-1815, 74-1816

* IN THE

JIMMIE L. RODGERS and JOHN A. TURNER,
Appellants,

v .
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Appellees.

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

v.
HONORABLE HUBERT I. TEITELBAUM,
United States District Judge,

Respondent,
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Real Parties in Interest.

RESPONSE IN OPPOSITION TO MOTION OF UNITED 
STATES STEEL CORPORATION TO DISMISS THE 

APPEAL FOR WANT OF JURISDICTION

WILLIAM T. COLEMAN, JR. 
Dilworth, Paxon, Kalish, 
Levy & Coleman 

2600 The Fidelity Building 
123 South Broad Street 
Philadelphia, Pennsylvania
BERNARD D. MARCUS 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pennsylvania

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 

19109 ERIC SCHNAPPER10 Columbus Circle 
New York, New York

15222
Attorneys for Appellants

t

10019



UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
Nos. 74-1815, 74-1816

IN THE

JIMMIE L. RODGERS and JOHN A. TURNER,
Appellants,

v.
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Appellees.

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

v.
HONORABLE HUBERT I. TEITELBAUM,United States District Judge,

Respondent,
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERIGA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Real Parties in Interest.

RESPONSE IN OPPOSITION TO MOTION OF UNITED 
STATES STEEL CORPORATION TO DISMISS THE 

APPEAL FOR WANT OF JURISDICTION

Appellants oppose 
Corporation to dismiss

the motion of the United States Steel 
the appeal for want of jurisdiction.

t



4

INTRODUCTION

The motion and supporting memorandum were filed on 
September 20, 1974 along with a separate "Brief on Behalf of 
Appellee United States Steel Corporation" which principally 
addresses the merits of the appeal. On the same day, appellees 
Local 1397, United Steelworkers of America, AFL-CIO and United 
Steelworkers of America, AFL-CIO filed their brief, which 
principally addresses jurisdictional issues, but they did not 
join in the motion to dismiss. The instant response in opposition 
to the motion to dismiss, therefore, addresses only those 
arguments raised by United States Steel in their motion to 
dismiss. Appellants will respond to other appellees' arguments 
in a reply brief.

ARGUMENT
Appellants have previously set forth the grounds that 

make appellate review on appeal proper in "Appellants'
Memorandum On Jurisdiction For Appeal," submitted to the court
on August 22, 1974. Brief For Appellants, at pp. 29, 31-36,
also sets forth the grounds that make an appeal proper. Appellants,
therefore, incorporate by reference the grounds asserted in
those two documents. Appellants also refer the Court to the
statement of reasons why appellate review of the same orders
by petition for prerogative writs is appropriate in Petition
For A Writ of Mandamus And/Or a Writ Of Prohibition, at pp. 24-25.

2



For further reasons why the motion should be denied, 
appellants assert the following:

1. This litigation concerns employment discrimination at 
the Homestead Works of the United States Steel Corporation. 
Appellants contend that the orders of June 27 and July 19 which 
forbid attendance by plaintiffs' attorneys at any Homestead 
N.A.A.C.P. meeting and other orders restricting communications 
between plaintiffs' attorneys and members of the putative class 
of black steelworkers not formal parties raise serious First 
Amendment issues. That such orders are appealable final orders 
under 28 U.S.C. § 1291 under the collateral order doctrine of 
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) 
has been affirmed in the recent Third Circuit en banc case,
United States v, Schiavo, Nos. 73-1855, 73-1856 (August 8, 1974) 
slip opinion at pp. 6-8 (plurality opinion by Van Dusen). Schiavo 
arose because of a district court "silence order" directed to
a reporter and the editors of a Philadelphia newspaper concerning 
coverage of a criminal trial. The opinion stated that, "The 
order in the instant case constituted a final decision since 
it determined a matter independent of the issues to be resolved 
in the criminal proceeding itself, bound persons who were 
non-parties in the underlying criminal proceeding and had a 
substantial, continuing effect on important rights," id_. at p. 7.

2. The Cohen collateral order doctrine as applied by 
Schiavo is a sufficient response to United States Steel's 
assertion that § 1291 jurisdiction to review collateral orders

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4

restricting First Amendment freedoms will adversely “inundate 
this Court with appeals of right," Motion at pp. 9-iO, 14-15,
16; does not involve independent "important rights" other than 
various procedural interests, Motion at pp. 11-12, 14-15, 16; 
and involves no "irreparable injury," Motion at pp. 15, 17, 18.

3. United States Steel also asserts that the order of
the district court on September 29, 1973 limiting communications 
between plaintiffs' attorneys and members of the putative class 
was not timely appealed from. Motion, at p. 12. This is doubt­
lessly true, but not meaningful as appellants did not appeal 
from the September 29 order. Appellants did timely appeal from 
the Order of July 19, 1974 reaffirming the prior order. Notice 
of appeal has also been filed from the orders of the district 
court issued on September 12, 1974 that embody the prior Orders 
of June 27 and July 19, 1974.

4. As to the orders" staying all proceedings, including all ' 
discovery and a class action determination, for at least six 
months, appealability is asserted under 28 U.S.C. § 129j^(a)(l).
The district court gave as its reason for staying all proceedings, 
"to permit the Alabama settlement process to reach its ultimate 
conclusion" and that, "As long as it appears that the Alabama 
settlement has the potential to eliminate all disputes between 
all the^parties, and thus the potential to eliminate the need
for litigation in this forum, I see no reason to interfere with 
that process." Memorandum Opinion of September 12, 1974, at

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i



p. 2. The unprecedented stay of all proceedings in an ongoing 
employment discrimination action because of a settlement in 
which appellants and the class they seek to represent played no 
part and to which they have objected is, therefore, no mere 
"step in the controlling of litigation before the trial court.

5. As the precedents cited by appellants, Memorandum On 
Jurisdiction For Appeal, at pp. 5—6 and Brief For Appellants,
at pp. 34-35, make clear it is not the formal denial of injunctive 
relief, but the practical and effective denial, as here, that 
gives rise to appeal under § 1292 (a) (1).

6. The orders which forbid attendance by plaintiffs' 
attorneys at any Homestead N.A.A.C.P. meeting, the other orders 
restricting communication between plaintiffs attorneys and 
members of the putative class, and the orders staying all 
proceedings all raise serious issues which will be unreviewable 
on appeal when the case is eventually decided on the merits in 
the district court. The motion to dismiss does not only seek 
denial of review on appeal at this time, but any review on appeal.

CONCLUSION
For the foregoing reasons, appellants request that the 

motion to dismiss the appeal for want of jurisdiction be denied.
Respectfully submitted,

WILLIAM T. COLEMAN, JR.Dilworth, Paxon, Kalish,
Levy & Coleman 

2600 The Fidelity Building
123 South Broad Street Philadelphia, Pennsylvania 19109

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BERNARD D. MARCUS 
Kaufman & Harris 
415 Oliver Building Pittsburgh, Pennsylvania

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCHNAPPER10 Columbus Circle

New York, New York 10019
Attorneys for Appellants

15222

6



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 
Nos. 74-1815, 17-1816

JIMMIE L. RODGERS and JOHN A. TURNER,
Appellants,

v.
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Appellees.

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

v .
HONORABLE HUBERT I. TEITELBAUM,United States District Judge,

Respondent,
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA,' AFL-CIO,

Real Parties in Interest.

CERTIFICATE OF SERVICE
This is to certify that I served on the parties listed 

below two copies each of appellant's Response In Opposition 
To Motion Of United States Steel Corporation To Dismiss The



Appeal For Want Of Jurisdiction by mailing said copies, airmail, 
postage prepaid, on this 27th day of September, 1974:

Leonard L. Scheinholtz, Esq. 
Reed, Smith, Shaw & McClay 
747 Union Trust Building 
Pittsburgh, Pennsylvania 15219
Carl B. Frankel, Esq.
Assistant General Counsel 
United Sbeelworkers of America 
Five Gateway Center 
Pittsburgh, Pennsylvania 15222

WILLIAM T. COLEMAN, JR.
Dilworth, Paxon, Kalish, 
Levy & Coleman 

2600 The Fidelity Building 
123 South Broad Street 
Philadelphia, Pennsylvania

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19109

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